Appellate filings in the P2P infringement case against Joel Tenenbaum...

grad student Tenenbaum, told the 1st U.S. Circuit Court of Appeals in Boston that the original $675,000 verdict resulted from U.S. District Judge Nancy Gertner’s failure to impart “judicial wisdom” to the jury in how it should assess damages under the Copyright Act. Gertner later reduced damages to $67,500, but Tenenbaum’s team said he deserved a new trial (WID July 13 p3). Judges can’t rely on “mere repetition of the statutory language in their instructions to juries,” Nesson said. Befitting the professor’s idiosyncratic style, the filing includes a graph showing the RIAA’s share of copyright litigation in the years when it was filing new P2P infringement lawsuits. Copyright suits reached nearly 6,000 in 2005, the second full year of the RIAA campaign and double the average from the previous 10 years, Nesson said. Only two cases have fully gone through trial, and though the RIAA stopped filing new suits, its campaign spurred new bursts of infringement suits from plaintiffs such as the Copyright Enforcement Group and U.S. Copyright Group against downloaders, website operators and bloggers, the filing said. “The combination of an escalating number of similar lawsuits and a dearth of on-point caselaw means that this Court’s decision could potentially shape the interactions between consumers and media content providers for years to come.” Section 504 of the Copyright Act, dealing with infringement and remedies, was never meant to apply to “noncommercial” consumers, as opposed to commercial bootleggers, Nesson said. The statutory penalties available under Section 504 don’t give the RIAA “carte blanche to levy windfall judgments without proving any harm whatsoever,” he said. Gertner’s $67,500 award is still “embarrassingly out of proportion” to the damage caused by sharing 30 songs, Nesson said. The RIAA’s emphasis on the “gigantic scale” of file-sharing actually argues against a large award against Tenenbaum specifically: The trade group’s own expert witness once estimated a U.S. audience of 40 million file-sharers, meaning each was responsible for about $250 of the recording industry’s $10 billion annual decline. Tenenbaum was “not any kind of filesharing ringleader or illicit software provider,” Nesson said.